STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ABDUL HAKGEM JAHMAL N. SHABAZZ ) a/k/a OWEN D. DENSON, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1090RX

) STATE OF FLORIDA, DEPARTMENT OF ) CORRECTIONS, )

)

Respondent. )

) FRENCH MILTON, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1091RX

) STATE OF FLORIDA, DEPARTMENT OF ) CORRECTIONS, )

)

Respondent. )

) FRED HERZOG, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1103RX

) STATE OF FLORIDA, DEPARTMENT OF ) CORRECTIONS, )

)

Respondent. )

) KUNTA MUMMAKIL, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1160RX

) STATE OF FLORIDA, DEPARTMENT OF ) CORRECTIONS )

)

Respondent. )

)

FINAL ORDER

Consistent with the Order of Consolidation and Notice of Hearing issued in this case by the undersigned on April 19, 1985 a hearing was held before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings at the Florida State Prison, Highway 16, Starke, Florida on May 8, 1985. The issue for consideration in this case was whether Florida Department of Corrections Rule 33-3.04, is valid.

APPEARANCES

For Petitioners: Allen L. Penoyer, Esquire

Florida State Prison Box 747, K1S2

Starke, Florida 32091

For Respondent: Julia P. Forrester, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301

BACKGROUND INFORMATION

On or about March 25, 1985 each of the Petitioners filed the identical Petition for Determination of the Invalidity of an Existing Rule relating to the Department of Corrections (DOC) Rule 330-3.04 alleging that that rule in question was invalid for the numerous reasons set forth in the Petition. Each of the petitions was forwarded to the Director of the Division of Administrative Hearings who, on April 12, 1985, assigned them to the undersigned for hearing. On April 17, 1985 the undersigned Hearing Officer, sua sponte, entered an Order of Consolidation joining three of the Petitions for hearing. Thereafter, on April 19, 1985 the fourth Petition was joined by order of the Hearing Officer.

Two days before the scheduled date for the hearing, the Petitioners' Representative filed a "Notice of Appearance" in which he indicated that he would be representing the Petitioners without seeking approval or authority from the Hearing Officer to do so. At the hearing, notwithstanding the fact that Petitioners' representative failed to follow the procedure for gaining

approval of representative status set out in Rule 22I- 6.08(2), F.A.C., the Hearing Officer inquired into the representative's qualifications to perform in that capacity and, being satisfied that the proposed representative was in fact qualified, ruled that he might so act.

Again, two days prior to the hearing, Petitioners' representative submitted a list of 10 individuals for whom subpoenas were requested. At the hearing, a query of Petitioners' representative revealed that as to several of the proposed witnesses, the Petitioners were unable to indicate sufficient connection of the witnesses to this hearing to establish that the testimony would have any probative value. Those proposed witesses who in the opinion of the Hearing Officer could present information relevant and pertinent to the matters under consideration were made available. The request for subpoenas as to the others were denied since they were not filed in a timely fashion.

At the hearing, Petitioners presented the testimony of Fred Herzog, Abdul Hakgem Jahmal N. Shabazz, both inmates at the Florida State Prison and Petitioners in this case, and Richard C. Dugger Superintendent of Florida State Prison. Petitioners also submitted Petitioners' Exhibits 1 through 7. Respondent presented the testimony of Mr.

Dugger previously called by Petitioners and Brenda Sealey, a Corrections Officer and supervisor of the mail room at Florida State Prison.

The parties have submitted posthearing proposed findings of fact pursuant to Section 12O.57(1)(b)4., Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

FINDINGS OF FACT

1. Petitioners are all inmates at the Florida State Prison (FSP) and are subject to the terms of DOC Rule 33- 3.04(9), which requires that the return address of all outgoing mail must contain the inmate's name, identification number and institutional name and address with abbreviations.

2. Petitioner Herzog, in March, 1985 failed to receive directly a letter sent to him from a correspondent in Beacon, N.Y., which was addressed to "Mr. Frederick Herzog, 081003, P. 0. Box 747, Starke, Florida 32091" because, as is indicated by stamp on the front of the envelope, the inmate's number and cell location must be included in the address. As will be seen below from the testimony of Ms. Seally, an inmate's cell number is no longer required. On two other occasions Mr. Herzog attempted to send letters to Beacon, N.Y., utilizing envelopes which reflected his return address merely as P.

   O. Box 747, Starke, Florida, 32091. These letters were not put into U.S. mail channels by prison mail room personnel because of the failure to reflect the institution's name and address in the return address.

   
   

3. Petitioner Abdul Hakgem Jahmal N. Shabazz, also known as Owen D. Denson, on at least two occasions attempted to send letters to various individuals, one in Ft. Pierce, Florida, and one in Nokomosis, Florida, in envelopes bearing the return address, Post Office Box 747, A-013625, either Florida State Prison, Starke, Florida or merely Starke, Florida without identification of the prison. Both were returned to him for failure to have the institution's full name in the return address.

   
   

4. Allen Penoyer, representative for Petitioners herein, was denied receipt of mail sent to him which included nude photographs.

   
   

5. Neither Petitioner Milton nor Mummakil testified at the hearing or presented any evidence in their behalf.

   
   

6. According to Mr. Dugger, Superintendent of FSP, the full identification without abbreviation of the prison name is required in inmate return addresses because of experience in the past which has indicated that inmates often misrepresent their location in correspondence to outsiders which sometimes results in extorting or gaining by fraud, money or other favors. The inclusion of the full prison return address would, it was hoped, give the outside addressees information as to where the letters originate. In one instance, a woman sent an inmate correspondent

   $10,000.00. The checks were intercepted and when questioned by prison officials, the woman indicated that from the mail she had received, she had no knowledge or indication that she was sending money to an inmate.

   
   

7. Another reason for the rule was that some prisoners were subscribing to stock market publications and other periodicals and not paying for them when billed. Without the full return address, the publisher had no idea its publication was coming to a prison. In several instances, the publishers contacted prison officials requesting something be done about the situation.

   
   

8. Mr. Dugger further indicated that some correspondents, even those who know an inmate is incarcerated, think the facility is a jail rather than the state prison and that the inmate's sentence is shorter than it actually is. Some correspondents have even shown up on a misrepresented discharge date expecting to see an inmate to whom they have sent money when in reality, the discharge date has been far in the future.

   
   

9. Brenda Sealey, the supervisor of the mail room at FSP insures all mail comes in and goes out in proper fashion and that DOC rules for mail are followed. At one point, prison officials interpreted the rule which requires complete address to include the cell number but this policy is no longer followed. Currently, mail will be delivered to prisoners if mail room personnel can in any way find the prisoner somewhere within the DOC. Even though the rule requires an inmate number as a part of the address, as a courtesy, mail room personnel will deliver mail that does not contain this if they can find the prisoner. They will send the mail to another institution if the inmate has been moved.

   
   

10. The rule requiring the use of the complete, unabbreviated name of the institution is still being implemented and applies to all routine mail but not to legal mail. Christmas cards, graduation and birthday cards, and the like are all routine mail and must have full return address. Identified legal mail is not held up because of technicalities.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

12. Representative for the Petitioners moved for permission to extend the Petition filed herein to include that portion of the rule contained in subsection (6)(a), which deals with the permitted interception of mail either from or to inmates if it:

    
    

    1. is obscene or contains a graphic presentation of sexual behavior that is in violation of law;

       
       

       Though leave was granted to extend the Petition to include this provision, no evidence was presented by the Petitioners to indicate that this rule was invalid or that they were adversely impacted by it. The only evidence submitted on this particular issue was a copy of a letter from the superintendent to a correspondent of the Petitioners' representative indicating that incoming mail which contains nude photographs was being returned because of this provision. Since this activity in no way involved the Petitioners in this hearing, this portion of the challenge to Rule 33-3.04 is dismissed.

       
       

13. Petitioners have listed thirteen reasons for declaring Rule 33-3.04(9) invalid. They are:

    
    

    1. That the rule conflicts with freedom of association and speech as provided for in the Florida and United States Constitution;

    2. That the rule conflicts with the right to remain silent and the right to testify [sic] against oneself as provided for in the United States and Florida Constitutions;

    3. That the rule is arbitrary and without a rational basis in fact;

    4. That the rule fails to show a compelling state or agency interest;

    5. That Use rule establishes penalties which have not been authorized by the legislature;

    6. That the rule is the unlawful result of a meeting held by Respondent in violation of the Florida Sunshine Law;

    7. That the rule is contrary to a stipulation made by an assistant state attorney in another administrative hearing;

    8. That the economic impact statement

       relating to this rule is incorrect, incomplete, and insufficient;

    9. That the agency so frequently moves inmates from cells and institutions that a correct location for the inmate cannot reasonably be determined;

    10. That the agency did not give advance notice of the proposed rule change to all persons who requested it;

    11. That the agency failed to comply with its own rule regarding notice to be given when mail has been disapproved; and

    12. That the agency has failed to cite its legal authority for adopting the rule in the rule.

        
        

14. Addressing each of Petitioners' grounds for attack, as to (a) and (b), dealing with freedom of association and speech, and the inmates' right to remain silent, the Hearing Officer has no authority to determine the constitutionality of an existing rule.

    
    

15. As to (c), the rule is certainly not arbitrary nor without rational basis. The testimony of Mr. Dugger and Ms. Sealey clearly indicates a valid basis for the imposition of such a rule as here.

    
    

16. As to (d), this same testimony establishes, prima facie, the state's interest in prohibiting the commission of crimes.

    
    

17. As to (e), the rule as attached here imposes no penalties. If Petitioners construe the fact that their mail is not dispatched if it does not bear the proper return address as punishment, that construction is in error.

    
    

18. As to (f), no evidence was presented by the Petitioners to establish that a meeting was held regarding this rule in violation of the sunshine law. Even if it were, however, while this may be grounds for criticism or even censure of the participants, it has no affect on the validity of the rule resulting from such meeting.

    
    

19. As to (g), any stipulation made by a state employee in another hearing not relating to the one under

    consideration here has no applicability to the instant hearing.

    
    

20. As to (h), relating to the economic impact statement, Petitioners failed to submit evidence related to the basic rule. Petitioners' Exhibit 6 includes an economic impact statement relating to a change to subsection 11 of the rule which has nothing to do with the issue in question here. In any event, it is difficult to see any substantial economic impact as a result of this rule.

    
    

21. As to (i), the frequency of movement of inmates within the DOC has no bearing on the requirement to list in full and without abbreviation, the current return address of the inmate and is irrelevant.

    
    

22. As to (j), no evidence was presented by the Petitioners to substantiate this allegation regarding advance notice of proposed rule changes. In any event, no change was proposed to that portion of the rule under consideration here.

    
    

23. As to (k), again the evidence fails to establish that the agency has failed to comply with its own rule. As in the case of (f) above, however, even if true, this matter would not affect the validity of the rule.

    
    

24. As to (l), no evidence was presented by the Petitioners to show that the agency failed to cite its legal authority in the basic rule. There is no citation of authority in the change submitted by Petitioners as Petitioners' Exhibit 6. However, that change is not relevant to the challenge here and therefore, this claim is not proven.

    
    

25. It is the Petitioners' burden to establish the invalidity of the rule being challenged. Agrico Chemical Company v. Department of Environmental Regulation, 365 So. 2d 759 (Fla. 1st DCA 1979). Here, Petitioners have failed to show the rule challenged is invalid. It is a valid exercise of delegated legislative authority; it is reasonably related to its enabling legislation; and it is neither arbitrary nor capricious. The requirements of the rule in issue here are reasonably related to the responsibility of prison officials to prevent unlawful conduct from occurring and is neither an unwarranted burden

on the prisoners nor an unreasonable interference with their rights.

In light of the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

ORDERED that the Petitions of ABDUL HAKGEM JAHMAL N. SHABAZZ, FRENCH MILTON, FRED HERZOG, and KUNTA MUMMAKIL,

are hereby dismissed.

DONE and ORDERED in Tallahassee, Florida this 7th day of June, 1985.

Hearings

Hearings

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative

this 7th day of June, 1985.

COPIES FURNISHED:

Abdul Hakgem Jahmal N. Shabazz, French Milton, Fred Herzog, and Kunta Mummakil

Florida State Prison Post Office Box 747 Starke, Florida 32091

Allen L. Penoyer, Esquire Florida State Prison

Box 747-K1S2

Starke, Florida 32091

Julia P. Forrester, Esquire Assistant Attorney General

Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301

Louie L. Wainwright Secretary

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Louis A. Vargas General Counsel

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Carroll Webb Executive Director

Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301

Liz Cloud Department of State

Administrative Code Bureau Room 1802, The Capitol Tallahassee, Florida 32301

Docket for Case No: 85-001090RX

Orders for Case No: 85-001090RX